IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION UNITED STATES OF AMERICA, ) Plaintiff, } v. } No. 3:09-er-O117-JAJ SCOTT RYAN DEMUTH } MOTION TO DISMISS THE SECOND SUPERSEDING INDICTMENT FOR PROSECUTORIAL. Defendant.) MISCONDUCT ‘Now comes the defendant Scott DeMuth and respectfully requests that this Court dismiss the above-entitled “Second Superseding Indictment’ returned on April 13, 2010 as it is the product of prosecutorial misconduct and the improper manipulation of the legal system. In support of this motion the defendant states the following: 1 ‘On November 18, 2009, the defendant was charged in a one-count conspiracy indictment that was fatally awed on numerous grounds, 2. Rather, than respond to the defendants’ motion to dismiss this indictment, the prosecution obtained, on February 17, 2010, a superseding grand jury indictment. 3. On February 25, 2010, this Court set the case down for trial for May 3, 2010. 4. On March 22, 2010, the defendant filed an extensive motion to dismiss the superceding indictment, to which the government has yet to respond. The defense also per the Order of this Courtprepared itself for a May 3“ trial based on the allegations in the superseding indictment. On April 9, 2010, the prosecutor filed a motion to continue the trial date, stating that he needed more time to respond to the defendant’s motions - which included several motions to dismiss the superceding indictment and several motions to suppress. The parties appeared before Magistrate Shields on April 12, 2010 at a “final pre-trial hearing” at which time the prosecutor reiterated his need for more time because of the pending motions and his work schedule. At this hearing the prosecution was given additional time until April 28" to answer the pending motions to dismiss and a possible June date was discussed. Atno time did the prosecutor formally or informally notify counsel that it was likely that yet another superseding indictment would be returned which would fundamentally change the nature and scope of the indictment which was scheduled to be tried within three weeks on May 3, 2010, The prosecution intentionally misled defense counsel, and possibly the Court, falsely claiming that he needed more time (o respond to dismissal motions that he had every intention of attempting to obviate by obtaining yet another indictment to clean up his second failure to properly charge the defendant.10. ‘The new indictment expands the scope of the charges well beyond ‘what was set to be tried on May 3, 2010. It now, not only alleges the one animal enterprise- Spence Labs - as the object of the conspiracy- but adds another animal enterprise — Lakeside Ferrets Inc,, in Minnesota —“‘and other animal enterprises elsewhere.” ‘Thus, the conspiracy now charged on the eve of the May 3“ trial date is now expanded to include an entirely new incident at a different time and place involving a new animal enterprise in Minnesota, and unnamed, unspecified other actions and other animal enterprises throughout the United States and even the world. Itis beyond belief that the prosecutor did not know that he intended to fundamentally expand this indictment at the time he asked for a continuance on April 12 in order to respond to the defense motions. Prosecution, under false pretenses, obtained the acquiescence of the defense to continue the trial date to allow the government time to respond to motions when he knew that he was going to change the entire scope of the indictment. This Court must not countenance such manipulation of the judicial process, The prosecutor in this case should be sanctioned for this misconduct by dismissing this second superseding indictment and a complaint be ordered filed against him with the appropriate attomey disciplinary authority